PIERRE, S.D. — The South Dakota Supreme Court on April 5 put the final nail in the coffin of a yearslong effort by T. Denny Sanford to keep records related to a child pornography investigation sealed.
Evidence filed in the case against the billionaire founder of First Premier Bank and Sanford Health namesake could be available as soon as this month.
The decision comes following Sanford’s second trip to the state’s highest court over barring public access to records in the investigation, a lengthy battle his attorneys fought against the Sioux Falls Argus Leader and ProPublica, a nonprofit investigative news platform.
“It's a good day for the public's right to know,” David Bordewyk, the executive director of the South Dakota Newspaper Association, told Forum News Service. “I’m very pleased to see the swift and unanimous opinion coming from the court upheld the arguments of the Argus Leader and ProPublica to get this information released from affidavits. I think it was clear-cut all along.”
In that vein, the Court appeared swayed by arguments from the state that “societal interests in having law enforcement and the judiciary operate in the public eye [that are] not overcome simply because no indictment is returned. Society has as much interest in understanding why no indictment was returned as it does in understanding why one was.”
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Stacy Hegge, one of the attorneys representing Sanford, declined to comment on the decision.
At the center of the overall conflict is a South Dakota law that the state may seal supporting affidavits from public scrutiny “until the investigation is terminated or an indictment or information is filed.”
The court argued that the “plain language” of this statute showed an “unmistakable expression of legislative intent” for the public’s ability to inspect records following the termination of the case.
The previous case in front of the Court two years ago determined that this law allowed the release of “the contents of the warrants” and some other minor records prior to the case’s termination.
In this case, the affidavits filed by investigators in conjunction with five different search warrants would offer an explanation as to the reason for the investigation in the first place.
In satisfying the triggering portion of state law, the state in May 2022 decided it would not move forward on criminal charges and terminated the investigation.
However, following this decision by investigators to drop the case, Sanford and his attorneys filed a new motion with several parts. The main argument by Sanford — and the only one that made its way to consideration of the South Dakota Supreme Court — was that a separate South Dakota law allows him to inspect the records prior to their release and “provide input on appropriate redactions of the information.
Chief Justice Steven Jensen, in the body’s opinion, referred to this argument as a “belated and unpersuasive effort to further delay the unsealing of the affidavits required by statute.”
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However, the circuit court did promise it would scrub these records of “personally identifying information,” such as “personal email addresses, home addresses, phone numbers, and birth dates.”
Allowing Sanford to inspect the documents, the lower court reasoned, would “further extend the litigation and unnecessarily delay the unsealing of the affidavits.”
Other arguments from Sanford this time around included a view that the state law allowing the unsealing of court records following the end of an investigation violated the privacy provisions in the South Dakota Constitution.
A petition for rehearing may be filed by Sanford’s attorneys within 20 days of the opinion’s filing, which could delay the release of records.
Jason Harward is a Report for America corps reporter who writes about state politics in South Dakota. Contact him at 605-301-0496 or jharward@forumcomm.com.
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